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Raytheon Co. v. NCR Corporation

United States District Court, D. Kansas

March 26, 2019

RAYTHEON COMPANY, Plaintiff,
v.
NCR CORPORATION, CECO, INC. and MAURICE J. EDWARDS, III as Trustee of the MAURICE J. EDWARDS, JR. GENERATION SKIPPING TRUST, Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge

         Plaintiff Raytheon Company brings this action pursuant to the Resource Conservation and Recovery Act (“RCRA”), seeking injunctive and declaratory relief against defendants NCR Corporation (“NCR”); CECO, Inc. (“CECO”); and Maurice J. Edwards, III, as Trustee of the Maurice J. Edwards, Jr. Generation Skipping Trust (“Trust”). 42 U.S.C. § 6972(a)(1)(B). The RCRA authorizes private citizens to bring suit in federal court against any person “who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment . . . .” Plaintiff claims that defendants engaged in industrial activities at a facility in Wichita, Kansas (“the Site”), that caused environmental contamination that may present an imminent and substantial endangerment to health and the environment. Plaintiff asks the court to compel defendants to “complete and pay for the necessary costs of environmental response, investigation, remediation, cleanup, and monitoring of the contamination . . . .” (Doc. 1, at 1.) The case is now before the court on defendants' motions to dismiss (Docs. 9 and 12). The court first addresses Doc. 12, where defendants CECO and the Trust ask this court to abstain from asserting jurisdiction over this case on the basis of primary jurisdiction and Burford abstention. Burford v. Sun Oil Co., 319 U.S. 315 (1943).

         Factual Background

         The following facts are taken from plaintiffs complaint and public records cited by the parties. Defendant CECO and the Trust bring their motion pursuant to Fed.R.Civ.P. 12(b)(6). There is some authority for considering materials outside the pleadings in deciding whether to dismiss based on abstention and primary jurisdiction grounds. See, e.g., Sierra Club v. Chesapeake Operating, LLC, 248 F.Supp.3d 1194, 1199 (W.D. Okla. 2017) (citing cases for the proposition that the court may consider materials outside the pleadings, but notably in this case, defendants sought to dismiss the plaintiffs complaint pursuant to both Rule 12(b)(6) and 12(b)(1)). Nevertheless, because defendants here only moved to dismiss under Rule 12(b)(6), the court will limit the facts it considers to those in the complaint and in public records submitted by the parties and pertinent to plaintiffs claims.

         The following is a brief timeline of events relevant to this case. The court does not recount in detail plaintiffs allegations supporting why plaintiff believes other parties are responsible for contamination at the Site. For purposes of this decision, it is only important to understand that plaintiff wants this court to declare others responsible for the contamination and any remediation; the reasons why are not critical here.

• 1962-69: Standard Precision, Inc. manufactured business machines and produced and refurbished precision aircraft instruments at the Site. The corporation was dissolved in 1965 and “Standard Precision” later became a corporate division of its former parent company, Electronic Communications, Inc. (“ECI”). In 1968, NCR acquired a controlling interest in ECI.
• 1962-77: NCR and its predecessors leased the Site and conducted manufacturing operations that contaminated soil and groundwater at the Site. NCR absorbed the Standard Precision Division in 1972.
• 1954-62 and 1977-present: CECO and the Trust and their predecessors conducted heavy tool and die manufacturing at the Site. This also caused contamination of the Site.
• 1994: During an investigation on a neighboring property, a plume of volatile organic compounds was found at the Site. Since that time, the Kansas Department of Health and Environment (“KDHE”) has conducted several investigations at the site and has identified various chemicals of concern at the Site. The United States Environmental Protection Agency (“EPA”), defendant NCR, and defendant CECO have also identified various chemicals of concern at the site.
• May 1, 2006: KDHE reached a settlement with CECO and the Trust, resolving liability relating to the Site for those entities.
• December 2017: KDHE issued an administrative order to plaintiff and NCR, requiring investigation and remediation of contamination at the Site, as well as reimbursement of KDHE's past costs.
• NCR has refused to comply with KDHE's order. CECO and the Trust are not named as parties to KDHE's order. Raytheon claims that it did not cause or contribute to contamination at the Site.
• The KDHE administrative action is currently stayed because plaintiff notified the parties that it was ...

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